Equal Protection Under The Law

Yesterday the Supreme Court heard oral arguments on Zubik v Burwell, or better said the Catholic Church against women’s right to reproductive health.

The legal argument briefly stated is that Catholic (or any religious) affiliates should not be forced to violate their deeply held religious beliefs if so required by some Federal law. In this case the issue is Obamacare and its requirement to provide cost free birth control methods as part of an employee’s healthcare plan.

The Sisters of the Poor said “we can’t” and Health and Human Services Secretary Burwell said there is a “work around”, use it. Legal counsel, of course, used more complicated arguments but the plaintiffs argue that their religious rights were “hijacked”. Hmmm.

There is no question that the Catholic Church (other religious organizations) have a perfect right to hold whatever beliefs it deems important. And there should be no question that the Catholic dogma has consistently opposed birth control, even though most Catholic women today welcome and use birth control.

The question before the court is whether the Sisters in observing the Church’s ban on contraception can overlook the ACA’s birth control requirements. Please note the law does not require anyone to use birth control.

This conflict need not have been necessary. When the Affordable Care Act was being constructed, a strategic decision was made to retain the array of private health care insurance companies and to attempt to use employers as the major means to underwrite the cost of health care. A single payer, universal healthcare could have taken the Catholic Church out of the equation (although the Church probably would have lobbied against such a universal health plan simply because birth control was available.)

In news reports it is striking how little attention is being given to the rights of employees being denied birth control coverage, many of whom are not even catholic.

The Catholic Church’s position does not reflect the behavior of its parishioners and is socially and medically out of date. Clinging to the Constitution’s provisions on religious freedoms while the Court closing its eyes to equal protection under the law is difficult to explain.

Pundits predict the Court will vote 4-4 and ironically the lower Court ruling (affirming Burwell) will hold. Regrettably other lower Court rulings against Burwell will also be allowed.

What a national mess a 4-4 Supreme Court decision would present. The law of the land is not the law of the land.

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